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¶
– Release Delayed ·As Of Filer Filing For·On·As Docs:Size Issuer Agent 5/08/18 EuroDry Ltd. F-1¶ 42:14M Seward & Kissel LLP |
Document/Exhibit Description Pages Size 1: F-1 Registration Statement by a Foreign Private Issuer HTML 1.07M 42: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 15K 2: EX-3.1 Articles of Incorporation/Organization or By-Laws HTML 58K 3: EX-3.2 Articles of Incorporation/Organization or By-Laws HTML 58K 4: EX-4.1 Instrument Defining the Rights of Security Holders HTML 21K 5: EX-4.2 Instrument Defining the Rights of Security Holders HTML 18K 6: EX-4.3 Instrument Defining the Rights of Security Holders HTML 46K 7: EX-4.4 Instrument Defining the Rights of Security Holders HTML 141K 8: EX-4.5 Instrument Defining the Rights of Security Holders HTML 231K 9: EX-4.6 Instrument Defining the Rights of Security Holders HTML 268K 10: EX-5.1 Opinion re: Legality HTML 19K 11: EX-8.1 Opinion re: Tax Matters HTML 20K 12: EX-10.1 Material Contract HTML 44K 21: EX-10.10 Material Contract HTML 124K 22: EX-10.11 Material Contract HTML 62K 23: EX-10.12 Material Contract HTML 78K 24: EX-10.13 Material Contract HTML 138K 25: EX-10.14 Material Contract HTML 619K 26: EX-10.15 Material Contract HTML 61K 27: EX-10.16 Material Contract HTML 554K 28: EX-10.17 Material Contract HTML 17K 29: EX-10.18 Material Contract HTML 68K 30: EX-10.19 Material Contract HTML 141K 13: EX-10.2 Material Contract HTML 43K 31: EX-10.20 Material Contract HTML 162K 32: EX-10.21 Material Contract HTML 494K 33: EX-10.22 Material Contract HTML 106K 34: EX-10.23 Material Contract HTML 126K 35: EX-10.24 Material Contract HTML 86K 36: EX-10.25 Material Contract HTML 66K 37: EX-10.26 Material Contract HTML 191K 14: EX-10.3 Material Contract HTML 147K 15: EX-10.4 Material Contract HTML 17K 16: EX-10.5 Material Contract HTML 12K 17: EX-10.6 Material Contract HTML 342K 18: EX-10.7 Material Contract HTML 20K 19: EX-10.8 Material Contract HTML 454K 20: EX-10.9 Material Contract HTML 627K 38: EX-14.1 Code of Ethics HTML 50K 39: EX-21.1 Subsidiaries HTML 13K 40: EX-23.1 Consent of Experts or Counsel HTML 12K 41: EX-23.3 Consent of Experts or Counsel HTML 13K
1.02 |
Following the release of Euroseas Ltd. as corporate guarantor under the Financial Agreement, it is a condition precedent to the Lender to continue advancing the Facility or any part thereof to the Borrower under the Financial Agreement that the Guarantor shall execute this Guarantee in favour of the Lender.
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2.01 |
In this Guarantee all capitalised terms not defined herein shall have the meaning stated in the Financial Agreement and in addition thereto:
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(i) |
cast, or control the casting of, more than fifty per cent (50%) of the maximum number of votes that might be cast at a general meeting of such body corporate; or
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(ii) |
appoint or remove all, or the majority, of the directors or other equivalent officers of such body corporate; or
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(ii) |
give directions with respect to the operating and financial polices of such body corporate with which the directors or other equivalent officers of such body corporate are obliged to comply; and/or
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(b) |
the holding beneficially of more than fifty per cent (50%) of the issued share capital of such body corporate (excluding any part of that issued capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital),
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(b) |
liability for any credit to the debtor from a supplier of goods or services or under any instalment purchase or payment plan or other similar arrangement;
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(b) |
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of (a); or
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(c) |
any agreement pursuant to the implementation of (a) or (b) with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction;
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(d) |
in relation to a "withholdable payment" described in section 1473(1)(A)(i) of the Code (which relates to payments of interest and certain other payments from sources within the US), 1 July 2014;
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(e) |
in relation to a "withholdable payment" described in section 1473(1)(A)(ii) of the Code (which relates to "gross proceeds" from the disposition of property of a type that can produce interest from sources within the US), 1 January 2017; or
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(f) |
in relation to a "passthru payment" described in section 1471(d)(7) of the Code not falling within (a) or (b), 1 January 2017,
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(h) |
any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);
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(i) |
any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;
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(k) |
receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis);
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(l) |
any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);
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(m) |
any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution in respect of (i) an underlying liability of an entity which is not a Security Party which liability would fall within one of the other sections of this definition or (ii) any liabilities of any Security Party relating to any post-retirement benefit scheme;
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(n) |
any amount raised by the issue of shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under standard accounting principles;
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(o) |
any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 30 days after the date of supply;
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(p) |
any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under standard accounting principles; and
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(q) |
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in (a) to (j).
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(a) |
imposed by any law or regulation of the United Kingdom, the Council of the European Union, the United Nations or its Security Council or the United States of America, whether or not any Security Party or any other member of the Group is legally bound to comply with the forgoing; or
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(b) |
otherwise imposed by any law or regulation by which any Security Party, or any other member of the Group, is bound or, as regards a regulation, compliance with which is reasonable in the ordinary course of business of any Security Party or any other member of the Group;
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3.01 |
The Guarantor hereby represents and warrants to the Lender in the terms set out in the Schedule hereto.
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(a) |
guarantees the punctual performance by the Borrower of all its obligations under or in connection with the Loan Agreement and every other Finance Document to which the Borrower is a party;
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(b) |
undertakes to pay to the Lender, on the Lender's demand, any such amount which is not paid by the Borrower when payable under or in connection with the Loan Agreement or any other Finance Document to which the Borrower is a party, as if it were the Borrower;
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(c) |
as a separate, continuing and primary obligation, agrees to fully indemnify the Lender on the Lender's demand in respect of all claims, expenses, liabilities and losses which are made or brought against or incurred by the Lender as a result of or in connection with any failure by the Borrower to comply with any of its obligations under any Finance Document to which the Borrower is a party or any obligation or liability guaranteed by the Guarantor being or becoming unenforceable, invalid, void or illegal; and the amount recoverable under this indemnity shall be equal to the amount which the Lender would otherwise have been entitled to recover; and
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(d) |
the Guarantor unconditionally and irrevocably undertakes to discharge all such obligations and liabilities whatsoever, whensoever and howsoever arising, as are now or may hereafter become incurred by the Borrower under or in connection with the Loan Agreement and every other Finance Document to which the Borrower is a party.
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5.01 |
In addition to the amounts referred to in Clause 4.01 the Guarantor undertakes to pay to the Lender on the Lender's written demand interest on all amounts due and payable under this Guarantee from the date of written demand under Clause 4.01 above to the date of payment in full (whether before or after judgement) at the Default Rate.
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5.03 |
Clause 5.02 is without prejudice to the Guarantor's liabilities in respect of the Borrower's obligations under clause 28 (expenses) of the Loan Agreement and under similar provisions of other Finance Documents.
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5.04 |
The Guarantor shall pay to the Lender on its demand any amount which the Lender is required, or agrees, to pay pursuant to any claim by, or settlement with, a trustee in bankruptcy of the Borrower or of another Security Party (or similar person) on the ground that the Loan Agreement or any other Finance Document, or a payment by the Borrower or of another Security Party, was invalid or on any similar ground.
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6.02 |
In any legal action all proceedings arising out or in connection with this Guarantee, the entries made in the Loan Account maintained by the Lender pursuant to Clause 13.01 of the Financial Agreement or a certificate signed by any one authorized officers of the Lender shall be conclusive evidence (save in case of manifest error) of the existence and the amount of the liabilities of the Borrower therein recorded and of the Guarantor under this Guarantee.
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7.01 |
For the purposes of this Clause the following terms will have the meaning ascribed to them herein:
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7.02.01 |
the Guarantor shall, promptly upon becoming aware, that the Guarantor or any other Security Party must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Lender accordingly.
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7.02.03 |
if the Guarantor or any other Security Party is required to make a Tax Deduction, the Guarantor shall (and shall procure that such other Security Party shall) make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law;
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7.02.04 |
within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Guarantor shall (and shall procure that such other Security Party shall) deliver to the Lender a statement under section 975 of the ITA or other evidence reasonably satisfactory to the Lender that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority;
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7.04.01.1 |
a Tax Credit is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was received; and
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7.05.01 |
All amounts expressed to be payable under this Guarantee or the other Finance Documents by the Guarantor or any other Security Party to the Lender which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, if VAT is or becomes chargeable on any supply made by the Lender to any Security Party under a Finance Document and the Lender is required to account to the relevant tax authority for the VAT, that Security Party must pay to the Lender (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and the Lender must promptly provide an appropriate VAT invoice to the Guarantor).
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7.05.02 |
Where a Finance Document requires the Guarantor to reimburse or indemnify the Lender for any cost or expense, the Guarantor shall reimburse or indemnify (as the case may be) the Lender for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that the Lender reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
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7.05.03 |
Any reference in this Clause 7.05 to any Security Party shall, at any time when such Security Party is treated as a member of a group for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the representative member of such group at such time (the term "representative member" to have the same meaning as in the Value Added Tax Act 1994).
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7.05.04 |
In relation to any supply made by the Lender to the Guarantor under a Finance Document, if reasonably requested by the Lender, the Guarantor must promptly provide the Lender with
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7.06.01 |
Subject to Clause 7.06.03, each Party shall, within ten Banking Days of a reasonable request by another Party:
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7.06.02 |
If a Party confirms to another Party pursuant to Clause 7.06.01 (a)(i) that it is a FATCA Exempt Party and it subsequently becomes aware that it is not, or has ceased to be a FATCA Exempt Party, that Party shall notify that other Party reasonably promptly.
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7.06.03 |
Clause 7.06.01 shall not oblige the Lender to do anything which would or might in its reasonable opinion constitute a breach of:
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7.06.04 |
If a Party fails to confirm its status or to supply forms, documentation or other information requested in accordance with Clause 7.06.01 (including, for the avoidance of doubt, where Clause 7.06.03 applies), then:
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7.06.04.1 |
if that Party failed to confirm whether it is (and/or remains) a FATCA Exempt Party then such Party shall be treated for the purposes of the Finance Documents as if it is not a FATCA Exempt Party; and
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7.06.04.2 |
if that Party failed to confirm its applicable "passthru payment percentage" then such Party shall be treated for the purposes of the Finance Documents (and payments made thereunder) as if its applicable "passthru payment percentage" is 100%,
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7.07.01 |
If the Guarantor is required to make a FATCA Deduction, the Guarantor shall make that FATCA Deduction and any payment required in connection with that FATCA Deduction within the time allowed and in the minimum amount required by FATCA.
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7.07.02 |
If a FATCA Deduction is required to be made by the Guarantor, the amount of the payment due from the Guarantor shall be increased to an amount which (after making any FATCA Deduction) leaves an amount equal to the payment which would have been due if no FATCA Deduction had been required.
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7.07.03 |
the Guarantor shall promptly upon becoming aware that it must make a FATCA Deduction (or that there is any change in the rate or the basis of a FATCA Deduction) notify the Lender accordingly. Similarly, the Lender shall notify the Guarantor in writing.
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7.07.04 |
Within 30 days of making either a FATCA Deduction or any payment required in connection with that FATCA Deduction, the Guarantor making that FATCA Deduction or payment shall deliver to the Lender evidence reasonably satisfactory to the Lender that the FATCA Deduction has been made or (as applicable) any appropriate payment paid to the relevant governmental or taxation authority.
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7.08.01 |
The Lender may make any FATCA Deduction it is required by FATCA to make, and any payment required in connection with that FATCA Deduction, and the Lender shall not be required to increase any payment in respect of which it makes such a FATCA Deduction or otherwise compensate the recipient of the payment for that FATCA Deduction. The Lender shall notify the Guarantor accordingly.
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7.08.03 |
The Lender making, or intending to make, a claim under paragraph 7.08.02 above shall promptly notify in writing the Guarantor of the FATCA Deduction.
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8.01 |
The Guarantor shall be liable under this Guarantee as a principal and independent debtor and accordingly it shall not have, as regards this Guarantee, any of the rights or defences of a surety.
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8.02 |
Without limiting the generality of Clause 8.01, the Guarantor shall neither be discharged by, nor have any claim against the Lender in respect of:
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(b) |
any arrangement or concession (including a rescheduling or acceptance of partial payments) relating to, or affecting, the Finance Documents;
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(c) |
any release or loss (even though negligent) of any right or Encumbrance created by the Finance Documents;
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(d) |
any failure (even though negligent) promptly or properly to exercise or enforce any such right or Encumbrance, including a failure to realise for its full market value an asset covered by such an Encumbrance; or
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(e) |
any other Finance Document or any Encumbrance now being or later becoming void, unenforceable, illegal or invalid or otherwise defective for any reason, including a neglect to register it.
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9.01.02 |
to procure that the Accounting Information to be delivered from time to time in accordance with Clause 9.01.01 shall be prepared in accordance with the Applicable Accounting Principles and practices consistently applied, which shall present fairly the financial positions, as at the end of each such financial year to which they relate, of the Group and the results of their operations for the year to which the Accounting Information relates.
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9.01.03 |
to obtain promptly at any time and from time to time such registrations, licenses, consents and approvals as may be required in respect of this Guarantee and the other Finance Documents under any applicable law or regulation to enable the Guarantor to perform and discharge its duties and liabilities hereunder and thereunder and promptly supply the Lender with copies thereof;
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9.01.04 |
to execute and procure the execution of any further document or documents reasonably required by the Lender in order to perfect or complete the security created by this Guarantee and the other Finance Documents;
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9.01.05 |
to ensure that at all times the claims of the Lender against it under this Guarantee and the other Finance Documents rank at least pari passu with the claims of all other unsecured creditors of the Guarantor save those whose claims are preferred by any bankruptcy, insolvency or other similar laws of general application;
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9.01.06 |
to maintain its corporate existence under the laws of its Original Jurisdiction and not to amend its articles of incorporation or other constitutional documents;
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9.01.07 |
to comply (and ensure that each other Security Party will comply) with all laws regulations (including but not limited to the laws and regulations relating to the listing of the shares of the Guarantor in NASDAQ, as the case may be), treaties and conventions applicable to the Guarantor, the Borrower, the other Security Parties and the Ship;
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9.01.09 |
to promptly notify the Lender in writing of any Event of Default or any Potential Event of Default and of the steps (if any) which are being taken to nullify or mitigate its effect and of any occurrence of which it becomes aware which might adversely affect the ability of the Guarantor and/or any one or more of the other Security Parties to perform and discharge their respective duties and liabilities under this Guarantee and/or the Financial Agreement and/or the other Finance Documents;
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9.01.10 |
to send (or procure that it is sent) to the Lender as soon as the same is instituted (or, to the knowledge of the Guarantor threatened), details of any litigation, arbitration or administrative proceedings against or involving a Security Party, or the Ship which is likely to have a Material Adverse Effect on a Security Party or the operation of the Ship;
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9.01.11 |
not to and ensure and procure that the Borrower and the Manager and any corporate shareholder(s) thereof shall not dissolve, merge into or consolidate with any other company or person;
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9.01.12 |
to (and procure that each other relevant Security Party shall) ensure and procure that no change in
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9.01.13 |
not to declare or pay any dividends or make any distributions to its respective shareholders in any form whatsoever if:
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9.01.13.2 |
immediately following such payment of dividends and/or distributions the test set out in Clause 23 of the Financial Agreement was applied and the Borrower would be obliged to provide additional security or prepay part of the Facility as therein provided; or
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9.01.13.3 |
immediately following such payment of dividends and/or distributions the Guarantor would be in breach of Clause 9.01.31
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(i) |
declare, make or pay dividend, charge, fee or other distribution (or interest on any unpaid dividend, charge, fee or other distribution) (whether in cash or in kind) on or in respect of its share capital ;
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9.01.14 |
not to (save and except as provided in this Guarantee or otherwise in favour of the Lender), create or permit to exist any Encumbrance whatsoever on any of its property or assets, real or personal, whether now owned or hereafter acquired, other than a Permitted Lien;
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9.01.15 |
to ensure and procure that other than in accordance with the Financial Documents the Borrower will not convey, assign, transfer, sell or otherwise dispose of or deal with any of their assets or rights whether present or future;
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9.01.16 |
to (and ensure and procure that each other Security Party shall) pay all Taxes, assessments and other governmental charges when the same fall due, except to the extent that the same are being contested in good faith by appropriate proceedings and adequate reserves have been set aside for their payment if such proceedings fail and ensure and procure that all its relevant tax returns shall be properly and timely filed;
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9.01.17 |
not to (and ensure and procure that no Security Party will) become a FATCA FFI or a US Tax Obligor;
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9.01.18 |
to (and ensure and procure that the Security Parties and the other members of the Group will) comply, in all respects, with all Sanctions;
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9.01.19 |
not to (and ensure and procure that none of the Security Parties and the other members of the Group will) become a Prohibited Person or become owned or controlled by, or act directly or indirectly on behalf of, a Prohibited Person, or become the owner or controller of a Prohibited Person;
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9.01.20 |
not to make, directly or indirectly, available any proceeds of the Facility to or for the benefit of a Prohibited Person and to ensure and procure that any proceeds of the Facility is not, directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions;
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9.01.22 |
to ensure that no change in the Chief Executive Officer and/or the Chairman of the Guarantor shall occur;
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9.01.23 |
not to (and ensure and procure that no other Security Party will) directly or indirectly use the proceeds of he Facility for any purpose which would breach the Bribery Act 2010, the United States Foreign Corrupt Practices Act of 1977 or other similar legislation in other jurisdictions;
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9.01.24 |
to (and ensure and procure that each of the Security Parties and each member of the Group will) conduct its businesses in compliance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws;
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9.01.25 |
to ensure and procure that, throughout the Security Period, all payments in relation to the operation of the Ship will be effected through the Lender (either via the Piraeus branch or any other branch reasonably nominated by the Lender);
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9.01.26 |
to (and ensure and procure that each other Security Party will) deliver promptly to the Lender such documents and evidence as the Lender shall from time to time require relating to the ultimate beneficial ownership of the Borrower, the Manager and the other members of the Group and their respective corporate shareholder(s);
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9.01.27 |
to (and ensure and procure that each other Security Party will) deliver to the Lender such documents and evidence as the Lender shall from time to time require relating to the verification of identity and knowledge of the Lender's customers and the compliance by the Lender with all necessary "know your customer" or similar checks, and to comply within thirty (30) days from the Lender's written notice to the Guarantor to that effect, to the full satisfaction of the Lender, with any requirements of the Lender in relation to the shares of the Borrower and the other members of the Group and their respective corporate shareholder(s) [including but without limitation any requirements of the Lender as to the approved form of the shares (registered or otherwise) of the Borrower and the other members of the Group and their corporate shareholder(s)], always on the basis of applicable laws and regulations or the Lender's own internal (generally applied) guidelines,
in each case as such laws, regulations or internal guidelines apply from time to time;
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9.01.28 |
to (i) provide the Lender with any documentation or information, as the Lender may request, which relates to individual or entity tax status and (ii) inform the Lender, or respond to any request from the Lender, if there are any changes to tax information previously provided;
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9.01.29 |
upon request by the Lender, to obtain, and to ensure and procure that each other Security Party will obtain a written waiver or consent from its respective Substantial Owners or Controlling Persons, which will be provided to the Lender to permit the Lender and other members of the HSBC Group to disclose and report tax and account specific financial information to any local or foreign Tax Authority. Where any one of the Guarantor and/or the Borrower and/or the other Security Parties fails to comply with requests for tax information, or fails to respond to requests for waivers or consents for tax information disclosure, or fails to respond to requests to obtain waivers or consents from Substantial Owners or Controlling Persons, the Lender may take, and may instruct members of the HSBC Group to take whatever actions are necessary to comply with the Lender's local or foreign tax reporting obligations, including without limitation any of the following action:
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9.01.31.1 |
the Market Value Adjusted Net Worth of the Guarantor shall not be less than Fifteen million Dollars ($15,000,000);
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9.01.31.2 |
the Leverage Ratio will not be higher than one hundred fifteen per cent. (115%) Provided that if the Guarantor has not agreed such a high percentage with its other financing banks, the lowest percentage required to be maintained with another financing bank will also apply in this case; and
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9.01.31.3 |
Liquidity shall not be less than three hundred thousand Dollars ($300,000 per Fleet Vessel);
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9.01.32 |
to ensure and procure that the Borrower shall comply with all covenants and undertakings set out in the Financial Agreement and the other Finance Documents.
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9.01.33 |
to ensure and procure that all the Earnings of the Ship shall be assigned to the Lender, and shall be paid to the credit of the Earnings Account, which shall be charged to the Lender by the Earnings Account Charge.
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9.02 |
The Guarantor confirms that it has not taken, and will not take without the prior written consent of the Lender (and then only on such terms and subject to such conditions as the Lender may impose), any security from the Borrower or from any other person (other than the Borrower and who has given or who may in the future give to the Lender any security, guarantee or indemnity for or in relation to the Indebtedness (each such person being hereinafter referred to as "Surety") in connection with this Guarantee, and any security taken by the Guarantor notwithstanding this Clause shall be held by the Guarantor in trust for the Lender absolutely as a continuing security for the Guarantor's Liabilities.
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9.03.01 |
the Guarantor shall not be entitled to participate in any security held or sums received by the Lender in respect of all or any part of the Indebtedness;
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9.03.02 |
the Guarantor shall not stand in the place of, or be subrogated for the Lender in respect of any security, nor take any step to enforce any claim against the Borrower or any Surety (or their respective estates or effects), nor claim or exercise any right of set off or counterclaim against the Borrower or any Surety, nor make any claim in the bankruptcy or liquidation of the Borrower or any Surety in respect of any sums paid by the Guarantor to the Lender or in respect of any sum which includes the proceeds of realisation of any security at any time held by the Lender in respect of any of the Guarantor's liabilities hereunder; and
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9.03.03 |
the Guarantor shall not take any steps to enforce any claim which it may have against the Borrower or any Surety without the prior written consent of the Lender and then only on such terms and subject to such conditions as the Lender may impose.
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9.04 |
The Guarantor shall throughout the Security Period duly observe and perform all of the covenants, obligations and conditions which are required to be observed and performed on its part under this Guarantee and each of the other Finance Documents to which it is a party and shall use its best endeavours to procure that all covenants, obligations and conditions required to be observed and performed, and undertakings made, by any of the other Security Parties under any of the Finance Documents shall be observed and complied with in their entirety.
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9.05 |
Until the Total Deferred Amount is reduced to zero the Guarantor (Eurodry) will not (through its Subsidiaries or otherwise) acquire any vessels and/or companies without the prior written consent of the Lender, unless if the initial acquisition amount of such vessels and/or companies is financed with newly raised equity and the Leverage Ratio of the Guarantor (Eurodry) is not more than 75% and/or if the Guarantor (Eurodry) is in compliance with its original financial covenants, namely it maintains maximum Leverage Ratio of less than 75%, Liquidity being not less than US$300,000 per Fleet Vessel and Market Value Adjusted Net Worth of not less than US$15,000,000.
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9.06 |
Until the Total Deferred Amount is reduced to zero, the Guarantor (Euroseas) will not (through its Subsidiaries or otherwise) make any voluntary prepayments to its other financing banks without the prior written consent of the Lender.
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10.01 |
The Lender shall have the right and power at all times whether before or after any demand hereunder for payment and without prejudice to the terms of this Guarantee, so that the Guarantor shall not be exonerated or discharged hereunder or its liability in any way limited, to:
|
10.01.01 |
vary or increase the Repayment Instalments, the rate of interest, the fees and other amounts payable under the Financial Agreement, or vary or waive any of the terms and conditions of the Financial Agreement and/or the other Finance Documents; and
|
10.01.03 |
release, vary or waive any securities, guarantees or rights which the Lender may now or hereafter have from or against the Borrower or any other person.
|
11.01 |
Any failure on the part of the Lender to exercise or any delay in the exercise of any right or power hereunder shall not operate as a waiver thereof.
|
11.02 |
The granting of time or indulgence by the Lender to, or compounding with, any other person or company liable to the Lender on any guarantee or any security or negotiable instrument for the time being held by the Lender or to which the Lender may be entitled pursuant to the Finance Documents shall not in any way prejudice the rights of the Lender against the Guarantor hereunder.
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11.03 |
It shall not be necessary for the Lender before claiming payment hereunder to endeavour to enforce any other guarantee or security whether from the Guarantor, the Borrower or any other person.
|
11.04 |
The Lender has the right and power to claim all amounts due and payable hereunder against the Guarantor and/or against any other Security Party in such order and at such time as the Lender in its absolute discretion considers to its advantage.
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11.05 |
The rights and powers of the Lender hereunder are cumulative and in addition to any rights and powers under law or otherwise.
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12.01 |
This Guarantee shall be a continuing guarantee and remain in full force and effect until all amounts due and payable under the Financial Agreement and/or the other Finance Documents, whether actually or contingently, are paid in full to the Lender (which expression shall not include payment of a dividend in liquidation or bankruptcy of less than one hundred percent (100%)). The Lender may make claims and demands under this Guarantee without limit of number. Upon payment and discharge of the Indebtedness in full to the full satisfaction of the Lender, the Lender, at the written request of the Guarantor, will release the Guarantee and return same to the Guarantor.
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12.02 |
Any amounts received under or in connection with this Guarantee shall be applied by the Lender in payment of the Indebtedness in accordance with the terms of Clause 12 of the Financial Agreement, and the Lender may prove in respect of all amounts due from the or any other person liable in the event of any insolvency, liquidation, composition or arrangement proceedings.
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12.03 |
The Guarantor hereby agrees that the Lender shall have the right at any time without notice to set-off or transfer any amounts standing to the credit of any account of the Guarantor with the Lender (whether in the Guarantor's sole name or jointly with any other person and whether current, deposit or otherwise whatsoever and whether subject to notice or not) in any currency against the liability of the Guarantor hereunder or under any other agreement with or facility made available to the Guarantor by the Lender.
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13.01 |
The Guarantor shall pay any and all stamp, registration and similar taxes and charges of whatsoever nature which may be payable or determined to be payable on, or in connection with, the execution, registration, notarisation, performance or enforcement of this Guarantee. The Guarantor shall indemnify the Lender against any and all liabilities with respect to or resulting from any delay or omission on the part of the Guarantor to pay any such taxes.
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14.01 |
This Guarantee shall be binding upon and inure to the benefit of the Lender and its successors and permitted assigns and references in this Guarantee to the Lender shall be construed accordingly.
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14.02 |
The Guarantor may not assign or transfer any of its rights and/or obligations under this Guarantee.
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14.03 |
The provisions of Clause 39 (Notices) of the Financial Agreement shall apply to the Lender in relation to the assignment of any of its rights and/or obligations under this Guarantee.
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15.01 |
The provisions of Clause 31 (Confidentiality) of the Financial Agreement shall apply in relation this Guarantee mutatis mutandis.
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16.01 |
Any release or settlement between the Guarantor and the Lender shall be conditional upon no security, disposition or payment to the Lender by the Borrower, the Guarantor or any other person being avoided or limited pursuant to any provisions relating to bankruptcy, liquidation or insolvency and if there shall be any avoidance or limitation as aforesaid the Lender shall have the right to enforce this Guarantee against the Guarantor subsequently as if such release or settlement had not occurred.
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16.02 |
If any amounts paid to the Lender in reduction of the amounts hereby guaranteed have to be repaid by the Lender on the ground of unfair or fraudulent preference or on any other ground, the Lender shall have the same rights hereunder against the Guarantor as if such amounts had never been paid to the Lender.
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17.02 |
Until all amounts due under the Financial Agreement and the other Finance Documents from the Borrower to the Lender shall have been paid in full the Guarantor shall have no right of subrogation and agrees not to:
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17.02.01 |
demand or accept repayment in whole or in part of any loans or advances then or thereafter due to the Guarantor from the Borrower or any other Security Party or to demand or accept any security in respect thereof, or to assign or charge the same as security; or
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17.02.04 |
claim or prove in competition with the Lender in any bankruptcy or liquidation or accept the benefit of any share in any payment or composition from the Borrower or any other guarantor of the Borrower's obligations to the Lender or in any other guarantee or security now or hereafter held by the Lender.
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17.03 |
Any security created or amount received in breach of this Clause 15 shall be held on trust for the Lender and forthwith transferred to the Lender on demand.
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18.01 |
In the event that any term or condition of this Guarantee is rendered or declared illegal, invalid or inoperative in whole or in part by any statute, rule or regulation or any decision of any court or tribunal of competent jurisdiction then such determination or declaration shall neither affect the validity of any other term or condition of this Guarantee which (save as aforesaid) will remain in full force and effect nor the legality, validity or enforceability of such term or condition under the law of any other jurisdiction.
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(b) |
to the Lender:
109-111 Messoghion Ave, Athens, Greece, Tel: +30 210 6961457 Attn. Ms Katerina Eleftheriou. |
19.07 |
In this Clause "notice" includes any demand, consent, authorisation, approval, instruction, waiver or other communication.
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20.01 |
This Guarantee and any non-contractual obligations arising out of or in connection with it shall be governed by, and construed in accordance with, English law.
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20.02 |
Subject to Clause 20.03, the courts of England shall have exclusive jurisdiction to settle any Dispute.
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(a) |
to commence proceedings in relation to any Dispute in the courts of any country other than England and which have or claim jurisdiction to that Dispute; and
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(b) |
to commence such proceedings in the courts of any such country or countries concurrently with or in addition to proceedings in England or without commencing proceedings in England.
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20.04 |
The Guarantor irrevocably appoints Hill Dickinson Service (London) Limited, presently at Irongate House, Duke's Place, London EC3A 7LP England, to act as its agent to receive and accept on its behalf any process or other document relating to any proceedings in the English courts which are connected with a Dispute.
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20.05 |
Nothing in this Clause 20 shall exclude or limit any right which the Lender may have (whether under the law of any country, an international convention or otherwise) with regard to the bringing of proceedings, the service of process, the recognition or enforcement of a judgment or any similar or related matter in any jurisdiction.
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20.06 |
In this Clause 20, "proceedings" means proceedings of any kind, including an application for a provisional or protective measure and a "Dispute" means any dispute arising out of or in connection with this Guarantee (including a dispute relating to the existence, validity or termination of this Guarantee) or any non-contractual obligation arising out of or in connection with this Guarantee.
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SIGNED
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)
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by [Ÿ]
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)
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for and on behalf of
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)
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EURODRY LTD.
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)
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SIGNED
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)
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by [Ÿ]
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)
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for and on behalf of
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)
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HSBC BANK PLC
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)
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1. |
The Guarantor is a corporation duly formed and validly existing under the laws of the country of its Original Jurisdiction and has the power and authority to own its assets and carry on business in each Relevant Jurisdiction.
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2. |
The Guarantor has the power to enter into this Guarantee and to perform and discharge its duties and liabilities hereunder and it has taken all necessary action (whether corporate or otherwise) required to authorise the execution, delivery and performance of this Guarantee.
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3. |
The giving of this Guarantee and Indemnity is to the commercial benefit of the Guarantor in that the Borrower is its wholly owned Subsidiary and the Guarantor has a commercial interest in the Facility to continue being extended to the Borrower and by giving this Guarantee and Indemnity, the Guarantor furthers its own business interests within the scope of its constitutional documents;
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4. |
The execution, delivery and performance of this Guarantee will not violate or exceed the powers granted to the Guarantor by, or any provision of, any law or regulation in any Relevant Jurisdiction, any order or decree of any governmental agency or court of or in any Relevant Jurisdiction, the articles of incorporation and by-laws of the Guarantor or any mortgage, deed, contract or agreement to which the Guarantor is a party and which is binding upon the Guarantor or its assets, and will not cause any Encumbrance to arise over or attach to all or any part of its revenues or assets nor require the Guarantor to create any such Encumbrance (other than Permitted Liens) other than any Encumbrance
to be created hereunder.
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5. |
All consents, licences, approvals, registrations, authorisations or declarations (including, without limitation, all foreign exchange approvals) in any Relevant Jurisdiction required to enable the Guarantor lawfully to enter into and perform and discharge its duties and liabilities under this Guarantee, to ensure that the duties and liabilities of the Guarantor hereunder are legal, valid and enforceable in accordance with the terms of this Guarantee and to make this Guarantee admissible in evidence in such aforesaid jurisdictions, have been obtained or made and are in full force and effect.
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6. |
This Guarantee constitutes the legal, valid, binding and unconditional duties and liabilities of the Guarantor, enforceable against the Guarantor in accordance with the terms hereof.
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7. |
Neither the Guarantor nor any other Security Party has failed to pay when due any material amount or to perform any material duty under the provisions of any agreement to which it is a party relating to Financial Indebtedness in excess in aggregate of US$1,000,000 and no event has occurred and is continuing which constitutes, or which with the giving of notice or lapse of time or both would constitute, a material breach or default by the Guarantor under any such agreement;
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8. |
No litigation, arbitration, tax claim or administrative proceedings before or of any court, arbitration tribunal or governmental authority are pending or, to the knowledge of the Guarantor, is threatened against the Guarantor or its assets which might have a Material Adverse Effect on the business, assets or financial condition of the Guarantor or the Guarantor's ability to perform and discharge its duties and liabilities hereunder.
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9. |
The Accounting Information provided by the Guarantor to the Lender is complete and correct in all material respects and presents fairly the position of the members of the Group therein stated and the results of the operations of the members of the Group therein stated ended on the relevant date, and have been prepared in accordance with the Applicable Accounting Principles and practices consistently applied and give a true and fair view of the financial condition, assets and liabilities of the members of the Group therein stated at the date to which such Accounting Information have been prepared and since that date there has been no adverse change in the financial condition of the business, assets or operation of the members of the Group therein stated or the Group taken as a whole.
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10. |
The information provided to the Lender in relation to this transaction is true and correct in all material respects and does not omit any material detail.
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11. |
It is not necessary or advisable to ensure the legality, validity, enforceability or admissibility in evidence of this Guarantee that it be filed, recorded or enrolled with any governmental authority or agency or that it be stamped with any stamp, registration or similar transaction tax.
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12. |
The selection of English law to govern this Guarantee is a valid and binding selection and the submission to each jurisdiction referred into Clause 20.01 is a valid and binding submission.
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13. |
The Guarantor is not entitled to claim any immunity in relation to itself or its assets under any law or in any jurisdiction in connection with any legal proceedings, set-off or counterclaim relating to this Guarantee or in connection with the enforcement of any judgment or order arising from such proceedings.
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14. |
No Taxes are imposed by withholding or otherwise on any payment to be made by the Guarantor under this Guarantee or any other document or agreement to be executed or delivered pursuant hereto or thereto.
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16. |
Neither the Guarantor nor any other Security Party is materially overdue in the filing of any Tax returns or is overdue in the payment of any amount in respect of Tax.
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17. |
No claims or investigations are being, or are reasonably likely to be, made or conducted against any of the Guarantor or the other Security Parties with respect to Taxes.
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19. |
The Guarantor, the other Security Parties and each member of the Group conducts its businesses in compliance with applicable anti-corruption laws and has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws.
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20. |
The Guarantor, the other Security Parties and each member of the Group is in compliance, in all respects, with all Sanctions;
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21. |
None of the Guarantor, the other Security Parties and/or the other members of the Group is a Prohibited Person or is owned or controlled by, or acting directly or indirectly on behalf of or for the benefit of, a Prohibited Person and it does not own or control a Prohibited Person; and
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22. |
No proceeds of the Facility shall be made available, directly or indirectly, to or for the benefit of a Prohibited Person or otherwise shall be, directly or indirectly, applied in a manner or for a purpose prohibited by Sanctions.
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As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 4/24/24 EuroDry Ltd. 20-F 12/31/23 94:14M Globenewswire Inc./FA 7/14/23 EuroDry Ltd. F-3 5:498K Seward & Kissel LLP 7/14/23 EuroDry Ltd. F-3 7:1.2M Seward & Kissel LLP 4/24/23 EuroDry Ltd. 20-F 12/31/22 81:9.2M Globenewswire Inc./FA 4/15/22 EuroDry Ltd. 20-F 12/31/21 84:12M Globenewswire Inc./FA 4/22/21 EuroDry Ltd. 20-F 12/31/20 82:8M Seward & Kissel LLP 5/14/18 SEC UPLOAD¶ 6/21/18 1:41K EuroDry Ltd. |